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Reverse Engineering: Fair Use and Other Rights

Among the rights people have, many are unknown or unsung until there is a dispute and the courts get involved in the process. Rarely recognized is the right to reverse engineer under the Fair Use Doctrine and Digital Millennium Copyright Act.  However, this is not an absolute right.  Rather, it can be waived under certain circumstances. So, how can the right to reverse engineer be used? How might an individual hope to reverse engineer anything? Can you prevent others from reverse engineering your products?

What does the reverse engineering law apply to?

Reverse engineering is a method of taking a device or program and taking it apart to determine how it works, occasionally in attempts to duplicate or improve it. Generally, this would be applied to devices or physical products that are protected by patents. However, in the realm of copyright, reverse engineering is allowed in some situations. Specifically, this applies to computer programs to allow interoperability of devices or systems.  Since computer programs may be designed to only work with a few devices or systems, to allow a consumer to use them on another operating system, reverse engineering would be a necessity.  This would allow individuals to ensure programs operate without interference or to add integration features.

First, before reverse engineering the software, the individual would have to satisfy a few requirements.  For example, the software must have been legitimately acquired, used in good faith, and sole purpose of the action should be for identifying and analyzing the parts of the program needed for interoperability.  Essentially, this allows “white-hat hacking” and similar actions for the benefit of copyright holders and other interested parties.  This is also the focus behind other white-hat activities, such as bug bounties and other actions taken by people to improve security by hacking or finding exploits.

How can an entity prevent someone from reverse engineering?

Regarding computer programs and software, most entities limit rights to reverse engineer through Terms of Use or End User License Agreements. This change prohibits the fair use defense, and can also be used to prohibit the ability to reverse engineer a program.  In a case involving the World of Warcraft software, a few fans of the game had successfully reverse engineered the software, which was made solely to work with Blizzard’s “Battle.net” system to authenticate the game.  Under normal circumstances, while this would have been permitted under the DMCA, the EULA with Blizzard had expressly prohibited them from reverse engineering.  Upon examining the claim, the court determined that the waiver was valid, and that a terms agreement for software could validly waive the ability for someone to reverse engineer that software.

In effect, this means that for any individual entity, contract law, namely the Terms of use, End User License Agreements and any clickwrap agreements would prohibit the reverse-engineering process for those companies that wish to limit them.

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